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Allegation

Allegation(as amended by the Panel of the Conduct and Competence Committee at the substantive hearing on 09 July 2019):

Whilst registered as a Social Worker with the Health & Care Professions Council, you, on 5 April 2018 at Dudley Magistrates' Court, were convicted of:

1) Theft contrary to section 1 (1) and 7 of the Theft Act 1968.

2) Fraud contrary to sections 1 and 2 of the Fraud Act 2006.

3) By reason of your convictions as set out at particulars 1 and 2 your fitness to practise as a Social Worker is impaired.

Finding

Preliminary matters:

Amendments to the Allegation:

1. At the start of the hearing, Ms Mond-Wedd on behalf of the HCPC applied to amend the Allegation so as to more accurately reflect the evidence that she intended to produce. Ms Mond-Wedd informed the Panel that the Registrant had been informed of the nature of the proposed amendments, by a letter dated 09 May 2019 which was sent to her registered address. She stated that the proposed amendments did not change the substance of the case. It made minor changes to particulars 1 and 2 of the Allegation. She submitted further that the amendment could be made without unfairness to the Registrant. Ms Hurd on behalf of the Registrant did not object to the proposed amendments. The Panel heard and accepted the advice of the Legal Assessor. He advised that the amendment could be made without unfairness to the Registrant. The Panel, having concluded that the amendment could be allowed without unfairness to the Registrant, determined that the Allegation should be amended in the terms set out above.

Admissions made by the Registrant

2. At the commencement of the hearing the Registrant admitted particulars 1 and 2 [the Registrant’s admissions] but denied particular 3. The Registrant’s admissions, though relevant, are not conclusive to the matters under consideration by the Panel. Accordingly the Panel determined to hear the entirety of the evidence.

Background:

3. At all material times the Registrant has been and is presently employed as a Social Worker by the Walsall Metropolitan Borough Council [Walsall MBC]. She qualified in July 1999. Since May 2016 she has been working in the Adoption Team as a Special Guardianship Co-ordinator.

4. On 19 March 2018 the Registrant informed the HCPC by email that she had been charged with the offence of “theft by misleading”. She informed the HCPC that she had informed Walsall MBC of the charge. The Panel has seen the email sent by the Registrant.

5. On 5 April 2018 the Registrant was convicted of the theft and fraud which are set out in particulars 1 and 2 of the Allegation. She was fined £500, ordered to pay compensation, a victim surcharge and costs. The Panel has seen the Memorandum of an entry in the Register of the Black Country Magistrates Court for 05 April 2018 which is evidence of the conviction and the sentences imposed by the Dudley Magistrates’ Court [the Memorandum of Conviction].

6. In summary the alleged facts giving rise to the conviction are as follows: On 08 March 2018 the Registrant attended a course where the victim’s wallet and its contents were taken. The Registrant used the victim’s bank card in a local Tesco store the same day. The Registrant made a “contactless" payment. She was identified by CCTV footage.

7. On 16 March 2018 the Registrant was arrested. It appears she admitted to the police that she had taken the wallet which contained the bank card and £90 in cash. The Panel has seen the police report which records the Registrant has having made these admissions. In particular she is recorded in the police report, as stating that she saw the victim drop the wallet which she picked up. She is recorded as having admitted that she kept the cash which was in the wallet and has since spent it. She is recorded as stating that subsequently she threw away the bank card and the wallet.

8. At the Magistrates’ Court the Registrant pleaded guilty to the theft of the wallet and of its contents. She also pleaded guilty to the fraudulent use of the credit card. The Registrant was represented by a solicitor at the Magistrates’ Court.

9. In her email to the HCPC dated 19 March 2019 the Registrant stated “I picked up a Barclay’s Card which I thought was mine, because it was on the floor where I was sitting next to me and I thought that it fell out of my phone wallet because that is where I keep my cards. I also have a Barclay card exactly the same. Later that evening I used the card which I thought was mine at Tescos’ on shopping (household groceries) to the value of £19.00 as a contactless payment. A few days later I realised that this was not my card and I cut the card up because I panicked and never used it again, realising my name was not on the card. Because I used the card the police have charged me with the matter. During my interview I did state that I used the card even though it was not an intended action and I genuinely made a mistake. I am ashamed of this matter and am extremely embarrassed, personally and professional.” In this email, the Registrant makes no reference to the wallet or to the cash which it is alleged that the wallet contained and which she appears to have admitted spending.

10. The Registrant was the subject of a disciplinary investigation and disciplinary hearing by her employer. At the disciplinary interview on 7 August 2018 [after the conviction referred to in the Allegation], the Registrant repeated the same version of events as she had set out in her email dated 19 March 2018.

Summary of the evidence and other material before the Panel

11. No oral evidence was called on behalf of the HCPC and no witness statements were tendered. Ms Mond-Wedd submitted a bundle of documents for the consideration of the Panel which included all the documents already referred to and in particular the Memorandum of Conviction. In addition she referred to a bundle of documents submitted by the Registrant which included the statement dated 21 June 2019.

12. The Panel has read the written statement dated 21 June 2019 which the Registrant has submitted for the consideration of the Panel. The Panel notes that in that statement the Registrant repeats that she picked up the victim’s card believing that it was her own. She repeats that when she used the card in Tesco’s she believed that the card was hers. The Panel notes that again the Registrant makes no reference to the wallet or to having spent the cash which it contained.

13. In her statement dated 21 June 2019 the Registrant explains her admissions to the police as follows; “that if I wanted a duty solicitor I could be waiting all day. However if I co-operated and admitted the theft and the use of the card it would be dealt with immediately. Reflecting upon the situation and the facts against me, now knowing that I had used someone else’s card I admitted the offence. At this point was scared, embarrassed and petrified at the police station”. With regard to the pleas of guilty at the Magistrate’s Court the Registrants stated “I then attended the Dudley Magistrate’s Court and pleaded guilty to two offences, namely theft and fraud. The theft was an allegation of theft by finding and the wallet. I did have a solicitor to represent me only to represent me as I had already made the admission. I fully acknowledge that the two convictions are a matter of record and I cannot go behind that record. All of the above actions are matters of very great regret and embarrassment”.

14. The Registrant gave oral evidence. She responded to detailed questions from Panel members. In addition, Ms Hurd has produced on behalf of the Registrant, a bundle of documents, which include the Registrant’s written statement dated 21 June 2019, a number of testimonials and references from colleagues and service users, evidence of on-going CPD training with Walsall MBC and a document on “The Dyslexia-Stress- Anxiety Connection”.

15. In summary the Registrant said as follows;

• She confirmed that her written statement dated 21 June 2019 was a truthful account of what happened.

• That whilst she did use the card when shopping in Tesco’s she did so in the belief that it was her card and it was thus a genuine mistake on her part and not dishonest act.

• She denied that she had taken the wallet or the cash or that she had spent the cash.

• During her police interview, at first she denied taking the wallet or the cash but just that she had picked up the bank card off the floor in error thinking it was hers. Subsequently, later in the interview she admitted taking the wallet and the cash.

• She said that whilst at the police station she was frightened and wanted to get out and home as soon as possible. She understood that if she admitted the allegations that might give rise to a caution. She did not want to remain at the police station in order to see the duty solicitor. In her written statement of 21 June 2019 she said “I admitted it because I understood that I was going to receive a caution at the police station. I was scared and petrified”.

• She said that she had made it clear to the police during the initial interview that her use of the card was a genuine mistake and not dishonest.

• She accepted that at the Magistrates’ Court she was represented by a solicitor to whom she explained that her use of the card was a genuine mistake and not dishonest. She also said that she had told her solicitor that she had not taken the wallet or its contents.

• She accepted that she had pleaded guilty to the facts as set out in the Memorandum of Conviction.

• She denied that whilst at the Magistrates’ Court she had seen the police report referred to above. She stated that she had only seen the police report later on when she received the HCPC bundle.

• She accepted that the fact of the convictions could cause service users to lose their trust in her and would also damage the reputation of the profession of social work.

• She stressed that never again would she use a card in the circumstances that she had described to the Panel.

Submissions made on facts, conviction and impairment

16. The Panel received a detailed submission from Ms Mond -Wedd in respect of the facts, conviction and impairment. In summary, she submitted as follows:

• That particulars 1 and 2 of the Allegation are proved by the Memorandum of Conviction and the Panel should not go behind the convictions or the facts on which the convictions were founded.

• That by reason of the convictions the Registrant’s fitness to practise is currently impaired. She referred to the relevant Practice Note. She submitted that the Registrant has not shown sufficient insight or evidence of remediation. She also submitted that the Registrant has shown little remorse or contrition.

• That the Panel should find that there was risk of repetition and that public confidence in the profession would be undermined if the Panel was not to find that the Registrant’s fitness to practise was not impaired.

17. The Panel received a detailed submission from Ms Hurd on behalf of the Registrant. In summary Ms Hurd submitted as follows;

• That whilst the Panel could not go behind the convictions they were entitled to and should treat the Registrant as an honest witness who was now telling the truth about the events leading up to her convictions, because she had nothing to gain by giving the account provided at this hearing today.

• That the Registrant’s fitness to practise was not presently impaired. This was demonstrated by the fact that the Registrant had been continuously employed as a Social Worker since the date of the convictions and by the fact she was trusted by her employers, fellow workers and service users.

• There was ample evidence of insight and remediation and the risk of the Registrant acting dishonestly in the future was very low.

• The Registrant was very ashamed of the situation in which she now found herself.

18. The Panel took into account all the material produced by the HCPC. The Panel also took into account all the material that had been produced by the Registrant, her oral and written evidence and submissions to the Panel, her responses to questions posed in this hearing and in the disciplinary hearing conducted on 7 July 2018. The Panel also took into account the testimonials and other documents produced by the Registrant.

19. The Panel heard and accepted the advice of the Legal Assessor as to facts, conviction and Impairment.

20. The Panel was aware that on matters of fact the burden of proof rests on the HCPC and that the standard of proof is the civil one, namely on the balance of probabilities.

Decision on Facts:

21. The Panel did not find the Registrant to be a plausible or credible witness. Where there were differences between the material in the police report and what the Registrant had said in her evidence to the HCPC, the Panel preferred the former to the latter. The Panel accepted the facts as stated in the convictions, which included the assertion that she had stolen the wallet and its contents. The Panel did not accept the explanation of innocent mistake advanced by the Registrant. The Panel noted that the Registrant was represented by a Solicitor at the Magistrates’ Court hearing at which she pleaded guilty to both charges. The Panel found it likely that she would have received legal advice before entering those pleas. The Panel noted that, in her evidence to the Panel, the Registrant said that she had told her solicitor what she has told the Panel at the hearing today. The Panel also noted the inconsistencies that emerged in her evidence to the Panel. The Panel further noted that the account attributed to the Registrant in the police report appeared to reflect a narrative explanation advanced by the Registrant rather than short responses to questions from the police officer.

22. Having considered all the evidence that it has received and the submissions that it has heard, the Panel makes the following findings;

Particulars 1 and 2 - Proved

23. The Panel is satisfied that both these particulars has been proved. In coming to this conclusion the Panel has seen and has accepted as conclusive proof the Memorandum of Conviction. Moreover the Registrant has always admitted the fact of the convictions, both orally and in writing and did so at the start of this hearing.

Decision on Impairment:

24. The Panel has heard and accepted the advice of the Legal Assessor. The Legal Assessor referred the Panel to relevant case law. The Panel is aware that any finding of Impairment is a matter for the independent judgement of the Panel and that, in respect of this issue, there is no burden or standard of proof. The Panel took into account the Practice Notes ‘Finding that Fitness to Practise is “Impaired”’ and on ‘Conviction and Caution Allegations’.

The Codes of Practice25. Having heard the submissions of Ms Mond -Wedd the Panel found that the Registrant was in breach of the provisions set out in Standard 9 of the HCPC Standards of Conduct, Performance and Ethics (the 2016 version).

Standard 9 provides that Registrant’s: Be honest and trustworthy

“Personal and professional behaviour9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”

Impairment by reason of the convictions

26. The Panel proceeded to consider whether the Registrant’s fitness to practise is impaired by reason of the convictions. The Panel is aware that what is to be assessed is the Registrant’s current fitness to practise. In considering this issue, the Panel considered and applied the principles stated by Mrs Justice Cox in the case of the Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council; Paula Grant [2011] EWHC 927 [Admin]. The Panel considered whether there was a risk that the Registrant would in the future act in a way similar to that found proved. In this context the Panel also considered the case of Cohen v General medical Council [2008] EWHC 581 (admin). The Panel further considered whether public confidence in the profession, in the HCPC as its regulator and the need to maintain proper standards of conduct, would be prejudiced if a finding of current impairment was not made. In addressing the question of impairment the Panel also took into account the guidance that has been issued by the HCPTS.

27. The Panel first considered whether there was a risk that the Registrant would repeat the conduct that it had found proved. The Panel came to the conclusion that the risk of the Registrant committing an act of theft or fraud was low. However the Panel did conclude that there was a real risk that in the event of her being faced with challenging circumstances she might not be honest and candid in her response to it. The Panel came to this conclusion because it considered that she had not been truthful in her explanation as to the relevant facts and therefore had not displayed appropriate insight or remorse. The Panel accepted that the Registrant was genuinely distressed and embarrassed at the position in which she now found herself but that this fell far short of recognising the wrongness of her actions. Accordingly, the Panel did find impairment on the ground, sometimes referred to as the “personal component”. This involves a finding that the Registrant’s sense of honesty, when in challenging circumstances, is not one that can be relied upon.

28. Moreover the Panel has concluded that public confidence in the profession of Social Worker and in the HCPC as its regulator, would be undermined if a finding of impairment was not made. The Panel also concluded that the need to maintain proper standards within the profession required a finding of impairment. Accordingly and for these reasons, sometimes referred to as the “public component” the Panel has concluded that the Registrant’s fitness to practise is presently impaired. The Panel’s considerations include the following;

• The Registrant has been convicted of two offences of dishonesty involving a serious breach of trust.

• The Registrant has shown that she is unable to accept that she has behaved dishonestly. Whilst she has expressed shame and embarrassment at the position in which she finds herself, the Panel is not persuaded that her expressions of shame and embarrassment are motivated by genuine remorse and contrition.

• The Registrant’s behaviour was a serious departure from the Code of Conduct identified above.

• A failure on the part of the Panel to hold that the Registrant’s conduct as found proved, did not amount to present impairment, would undermine public confidence in the profession and in the HCPC as its regulator. A finding of no impairment would not be compatible with the need to uphold proper standards of conduct on the part of Social Workers.

Decision on Sanction:

29. Having concluded that the Registrant’s fitness to practise is impaired, the Panel proceeded to consider what, if any Order, is appropriate and proportionate, having regard to its findings as set out above and in particular, to address the public interest that is engaged in this case.

30. Ms Mond-Wedd made submissions on behalf of the HCPC. She emphasised that the decision as to the appropriate sanction to be imposed was a matter for the judgement of the Panel and the HCPC did not intend to make any specific submissions as to the appropriate sanction. She reminded the Panel of the principle of proportionality. She said that the Panel should have regard to the Indicative Sanctions Policy [ISP] published by the HCPC in March 2017. She reminded the Panel that it should have regard to both aggravating and mitigating factors, which she identified. She submitted that to take no action nor impose a caution order would be inappropriate. She submitted that a Conditions of Practice Order would also be inappropriate. She submitted that the Panel should give serious consideration to the making of a Suspension Order. She reminded the Panel that a Striking Order Panel was a sanction of last resort.

31. Ms Hurd on behalf of the Registrant also made submissions to the Panel and the Panel gave careful consideration to what she said. In summary she submitted as follows;

• A suspension order would be disproportionate.

• That the Panel should consider making a Caution Order or if a Caution Order was deemed inappropriate, a Conditions of Practice Order. She identified a number of conditions which the Panel might consider.

32. The Panel has considered all the submissions and evidence that it has heard and read. It has accepted the advice of the Legal Assessor. It has taken account of the ISP. It kept in mind that the purpose of a sanction was not to be punitive but to protect the public and to sustain the public interest. The Panel was very conscious of the deterrent effect that an appropriate order could have on other registrants, the need to safeguard the reputation of the profession concerned and also the need to sustain public confidence in the regulatory process itself.

33. The Panel took into account the principles of proportionality, balancing the interests of the Registrant with the public interest.

34. The Panel also took into account the relevant aggravating and mitigating factors.

35. As regards the aggravating factors; the Panel noted:

• The Registrant has not acknowledged that her actions were dishonest and has therefore not shown sufficient insight or remorse.

• The Registrant did not give an honest or full account of her actions to the Panel.

36. As regards mitigating factors, the Panel noted that:

• The incident on 8 March 2018 was isolated and has not been repeated.

• The Registrant is otherwise a person of good character and is well regarded by fellow social workers, her employers and service users.

• The Registrant has been in continuous employment as a Social Worker since these offences and there have been no complaints about her conduct of which the HCPC is aware.

37. The Panel has concluded that to take no action would be wrong. Such an outcome would be inappropriate having regard to the facts of the case. It would not protect the public or maintain public confidence in the profession or in the HCPC as its regulator. It would not send the appropriate message to the public or to fellow professionals. Moreover the Registrant has not shown sufficient insight or evidence of remediation and there is a real risk that the Registrant would be less than candid in the event that she was to be faced in the future with challenging or stressful circumstances. For the same reasons the Panel concluded that a Caution Order would not be appropriate.

38. The Panel next considered making a Conditions of Practice Order. It has taken into account the guidance in the ISP. It has concluded that a Conditions of Practice Order would not be appropriate. Conditions cannot be formulated which protect the public or address the public interest. In coming to this conclusion, the Panel noted that the facts which gave rise to the convictions involve dishonesty which the Registrant is unwilling to admit to the Panel. The dishonesty could not be said to be minor in character.

39. The Panel next considered making a Suspension Order. It concluded that a Suspension Order for a period of six months would be appropriate and proportionate. In coming to this conclusion the Panel noted that the convictions were of a serious nature but that it was unlikely that the Registrant would commit further acts of theft of fraud. The Panel concluded that there was no inherent reason which would prevent the Registrant from understanding and seeking to remedy her failings and that a period of suspension for 6 months would enable her to do so.

40. The Panel did consider making a Striking Off Order but concluded that such an outcome would be disproportionate. In coming to this conclusion the Panel noted that since the convictions the Registrant had been in continuous employment as a Social Worker, that she is well-regarded by her employers, and that the risks of the Registrant committing another act of theft or fraud were low.

41. The Suspension Order will be reviewed before it expires. The following may assist the reviewing panel;

• The physical attendance of the Registrant.

• Evidence of what the Registrant has been doing since her suspension.

• Testimonials and references from those with whom she has been working, whether that work is paid or unpaid.

• A reflective piece from the Registrant demonstrating insight into the findings of the Panel and what she has learnt from these events. It would help if she could explain how her current therapy or other support is assisting her to come to terms with her actions. It would also assist if she could explain how she has dealt with, or would deal in the future with, situations which challenge her integrity.

Order

That the Registrar is directed to suspend the registration of Mrs Palbinder Kaur Malhi for a period of 6 months from the date this order comes into effect.

This order will be reviewed again before its expiry.

Notes

Right of Appeal:

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

European alert mechanism:

In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been restricted.

You may appeal to the County Court against the HCPC’s decision to do so. Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Application for an Interim Order:

1. Ms Mond-Wedd submitted that the Panel should make an Interim Suspension Order on the grounds that it was necessary for the protection of members of the public and was otherwise in the public interest. She submitted that the letter dated 25 April 2019 giving the Registrant notice of the substantive hearing, informed the Registrant, that in the event of the Panel finding the case against her being well founded and making an order which removes, suspends or restricts her right to practise, it may also make, with immediate effect, an Interim Order which suspends or restricts her right to practise.

2. Ms Hurd on behalf of the Registrant did not oppose the imposition of an Interim Suspension Order to cover the appeal period.

3. The Panel accepted the submissions of Ms Mond-Wedd and Ms Hurd. The Panel accepted that the Registrant has been given notice of the fact that the Panel could now make an interim order with immediate effect. The Panel determined that having regard to all its findings that are set out above, an interim order was necessary for the protection of members of the public and was otherwise in the public interest. The Panel did not think that an Interim Conditions of Practise Order was appropriate. Its reasons are precisely the same as those set out above. In these circumstances the Panel concluded that only an Interim Suspension Order for a period of 18 months, would protect the public and declare and uphold proper standards within the profession. The Panel’s reasons are those set out as its reasons for making the Suspension Order.

Interim Suspension Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.